Elise Amendola / AP

Earlier this year, Robert Frese, a 63-year-old living in a mobile-home park in New Hampshire, posted a pseudonymous Facebook comment declaring that a local police chief was too cowardly to do anything about an allegedly corrupt subordinate. The cops treated that post as a crime. Did that violate the Facebook commenter’s constitutional rights?

Defamation is often thought of as a matter for civil court, where a wronged party can seek recompense for many false, injurious statements. Twenty-five states, though, have criminal-defamation statutes. New Hampshire’s declares that “a person is guilty of a class B misdemeanor if he purposely communicates to any person, orally or in writing, any information which he knows to be false and knows will tend to expose any other living person to public hatred, contempt or ridicule.”

On Tuesday, Frese sued New Hampshire Attorney General Gordon MacDonald in hopes of permanently invalidating that criminal-defamation law. He is represented by the ACLU, which opposes all criminal laws against defamation, and wants to use Frese v. MacDonald as a test case to challenge their validity.

Robert Frese’s strange story is perhaps best begun in 2012. He repeatedly posted comments on Craigslist alleging that a local life-coaching business was “a scam.” That May, the Hudson Police Department charged him with criminal defamation. He pleaded guilty, and a judge ordered him to be fined and to be on good behavior for two years.

According to The Exeter News-Letter, Frese felt mistreated during a 2013 traffic stop with an Exeter policeman, and was “charged and convicted by Exeter police on charges of stalking in 2014 and criminal trespassing in 2017 for rummaging through a private dumpster.”

Then, on May 4, 2018, a local newspaper published a soft feature article headlined “Retiring Exeter Officer’s Favorite Role: Mentoring Youth.” Its subject was the same policeman involved in that 2013 traffic stop. The newspaper posted the article to its Facebook page. That’s when Frese commented, calling the subject of the article “the dirtiest most corrupt cop that I have ever had the displeasure of knowing.” He added that the “coward” police chief did nothing about it.

The newspaper quickly removed the comment at the police chief’s request, but Frese persevered, using another pseudonymous account to comment. “The coward Chief Shupe did nothing about it and covered up for this dirty cop,” he wrote. “This is the most corrupt bunch of cops I have ever known and they continue to lie in court and harass people.” This time, the police chief forwarded the Facebook comment to one of his detectives. Together, they decided that Frese should be charged with a crime.

Critics of criminal-defamation laws have long pointed out that society is awash with claims that are technically defamatory under the statutes—the courts would be overwhelmed if even 1 percent were prosecuted—and that a hugely disproportionate share of the rare cases of actual enforcement involve people in power going after their critics. “Everyone has been waiting for a legal challenge like this,” Ken White, a prominent criminal-defense attorney, told me. When you hear about a criminal-defamation case, “you can be pretty sure that it’s being used to harass, either directly by police or by someone who has the police wrapped around their finger,” he said.

In some of those cases, the criminal charges are dubious even assuming that the underlying statutes are constitutionally valid. White once wrote about a case where a Georgia woman was arrested after posting on Facebook, “That moment when everyone in your house has the flu and you ask your kid’s dad to get them (not me) more Motrin and Tylenol and he refuses.” Her ex was a captain in the local sheriff’s department.

In Frese’s case, the charges were dropped after New Hampshire’s attorney general issued a memorandum stating, “The fact that members of the Exeter Police Department think that Frese’s statements are false does not somehow criminalize Frese’s speech,” adding that the cops made no apparent effort to demonstrate actual malice:

The incident report makes clear that the Exeter Police Department failed to consider this requirement when determining whether to arrest and charge Frese. Instead, the department only considered whether there was credible information to support Frese’s statements.

Specifically, Detective Mulholland expressly stated in his report that he brought the charge against Frese because there was no credible information that Frese’s statements were true. But this is not the legal standard. Without probable cause of actual malice, Frese’s arrest and the subsequent charges against him raised First Amendment concerns.

But remember, the ACLU’s argument is not merely that criminal-defamation statutes are bad policy, or that they are often abused by police officers, or that Frese was wrongfully charged given the language of the law. It is arguing that New Hampshire’s statute violates the Constitution.

Weighing against that claim is the fact that defamation is a recognized exception to First Amendment free-speech protections, that criminal-defamation statutes have a long history in the United States, and that many observers, including the First Amendment expert Eugene Volokh, have previously looked at the New Hampshire statute and concluded that it is constitutional.

But the ACLU argues that the statute is impermissibly vague. The background case law that it cites holds a criminal law to be invalid on those grounds if it fails “to provide the kind of notice that will enable ordinary people to understand what conduct it prohibits” or if it “may authorize and even encourage arbitrary and discriminatory enforcement.”

Remember, the New Hampshire statute criminalizes oral or written expression that the speaker both “knows to be false” and “knows will tend to expose any other living person to public hatred, contempt or ridicule.” What’s so vague about that?

To understand the ACLU’s view, it is useful to take a detour to Alaska, where the state supreme court once issued a ruling in a case involving George Gottschalk, who got his truck towed away one night by a state trooper. When he went to retrieve it, he falsely claimed that $250 was missing from the glove compartment, even filing an inaccurate police report.

That false report was a crime. But a conviction for criminally defaming the state trooper was overturned and the statute was struck down for vagueness.

The majority opinion began by reasoning that “criminal laws must give the ordinary citizen fair notice of what is and what is not prohibited,” and that “people should not be made to guess whether a certain course of conduct is criminal.” For that reason, “where because of its imprecision a vague statute may restrict the exercise of rights guaranteed by the First Amendment,” the court ruled, “it is said to be overbroad.”

Alaska’s criminal-defamation statute did not define what was defamatory, so the court relied on the common-law definition, which it articulated as “any statement which would tend to disgrace or degrade another, to hold him up to public hatred, contempt or ridicule, or to cause him to be shunned or avoided”—not entirely different from New Hampshire’s language. “In our view,” the court ruled, “this falls far short of the reasonable precision necessary to define criminal conduct.”

Here’s the core of the court’s reasoning:

Whether an utterance is defamatory depends on the values of the listener. Even in an ethnically homogeneous culture these values will not be uniform, and it is not always easy to predict what will be taken as defamatory. The confusion is compounded in Alaska, because among the several ethnic groups which reside here there may be divergent views on what is, and what is not, disreputable…

The decision went on to declare that “one evil of a vague statute is that it creates the potential for arbitrary, uneven and selective enforcement.”

In holding the statute unconstitutionally vague, however, the Alaska court added, “we do not decide … whether all conceivable criminal libel statutes are necessarily vague.” Given “a narrowly drawn statutory definition, especially one designed to reach words tending to cause a breach of the peace, then such a statute might well be proper,” it ruled.

The ACLU believes the New Hampshire criminal-defamation statute to be impermissibly vague in much the way that the Alaska court articulated.

It argues that criminal statutes implicating the First Amendment require a greater degree of specificity than usual, as statutes of that sort invariably inhibit the exercise of protected speech when they abut it. And it goes further than Alaska, contending that the line between protected speech and defamation is often so blurry as to be permissible in civil law but inappropriate for criminal law as a general matter, given how prone it is to arbitrary, uneven, and selective enforcement.

I ran the vagueness argument by Volokh, asking if it changed his view of the New Hampshire law and whether it was likely to survive a court challenge. “I agree that the Gottschalk decision is helpful to the ACLU; perhaps it will ultimately carry the day,” he emailed back—but that isn’t the outcome on which he’s betting.

He cited several cases to ground his contrary analysis, including Garrison v. Louisiana, a 1964 case in which New Orleans District Attorney Jim Garrison was convicted of criminal libel for stating that the court system was backed up because a number of state judges were lazy and inefficient.

The Supreme Court declared Louisiana’s criminal-libel law unconstitutional, in part because it restricted the use of truth as a defense and did not require proof that forbidden statements were uttered with malice. But Justice William Brennan wrote that “although honest utterance, even if inaccurate, may further the fruitful exercise of the right of free speech, it does not follow that the lie, knowingly and deliberately published about a public official, should enjoy a like immunity.”

That’s one of several passages that color skepticism of the ACLU’s case. Says Volokh:

I think that the likelier scenario is that the New Hampshire law would be viewed as sufficiently narrow and sufficiently clear to be constitutional, given Herbert v. Lando and Garrison v. Louisiana. This is especially so because the “tends to expose to public hatred, contempt, or ridicule” test has a long history to it, and because there has to be a showing that the speaker actually knew that the statement had that tendency.

“[T]he knowledge requirement of the statute further reduces any potential for vagueness, as we have held with respect to other statutes containing a similar requirement.” Holder v. Humanitarian Law Project (2010).

Whether or not the ACLU prevails, this case ought to prompt legislators in the 25 states with criminal-defamation statutes to reflect on the wisdom of maintaining them, even if they do pass constitutional muster. “Of course, freedom of speech does not give anyone the absolute right to spread malicious lies about their fellow citizens,” the ACLU argued in a blog post released as it filed the case. “That’s why our laws allow people who have been slandered to file civil lawsuits for money damages.”

“Civil lawsuits are fully capable of addressing the harms caused by defamation, which is why criminal-defamation prosecutions became increasingly rare over the course of the 20th Century,” it added. “But in states that still have criminal-defamation laws on the books, public officials still use them to prosecute their critics or to punish people who don’t have the resources to sue for money damages.”

Actually, that wrinkle about punishing people who have too little money to sue cuts in two directions. Hiring a lawyer and filing a lawsuit is expensive. What’s your remedy in a digitally connected world where there are no criminal penalties for defamation, you’re barely scraping by, your ex-boyfriend doesn’t have a penny to his name, and he keeps going online and falsely asserting that you’re a thief who steals from all her employers and infects all her lovers with STDs?

Criminal defamation may be rarely prosecuted now, and absent in 25 states, but it’s conceivable that the mass-publishing platform that the internet puts in everyone’s hands will make criminal-defamation laws more popular at some point. I’d remain skeptical, given the impossibility of policing the web without destroying much of its value; the rampant political abuses tied to criminal defamation and its cousin, seditious libel, in U.S. history; and the mischief presently done under similar laws by authoritarians abroad.

Put another way, there is a public interest in preventing defamation. But the costs of doing so through criminal law are too high, whether or not it passes constitutional muster.

This article is part of “The Speech Wars,” a project supported by the Charles Koch Foundation, the Reporters Committee for the Freedom of the Press, and the Fetzer Institute.

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